Tuesday, September 05, 2006

Forget it's the U.S. Constitution we expound. Think of it, instead, as a contract. The Constitutional contract primarily binds agents of the U.S. federal government and its constituent states. That, it does expressly. It binds other parties more weakly, via implied or hypothetical consent. But anyone over whom the U.S. claims jurisdiction thereby wins standing to enforce the Constitution as an intended beneficiary. Thus may citizens sue the government.

Viewing the Constitution as a contract proves quite an interesting exercise. It suggests a number of interpretive rules--rules tested over hundreds of years and thousands of cases--that could help us discern the objective meaning of the constitution and the proper scope of its enforcement. Constitutional contractualism suggests, for instance, that we interpret the U.S. Constitution as a form contract written, judged, and offered by a government services provider. That adhesion contract binds citizens to the extent that they objectively manifest consent to the federal government's proposed bargain. The Constitution thus binds most of us only rather weakly.

How should we read the constitution-qua-contract? Pretty much the way we read other contracts. Thus, for instance, we should start with the plainest meaning of the text, taken as a whole, that a reasonable person would have adopted when accepting the contract; we should interpret vague or ambiguous language against the agreement's drafter; and we should favor efficient and equitable remedies for breach. At the time of its founding, on that view, the Constitution meant what those who ratified it did or should have thought it meant. Now, though, the Constitution means what it does or should mean to those of us it binds or benefits.

A contractual constitution can claim justifiability only relative to certain parties, such as one who signs a promise to obey the Constitution. A hierarchy of justifications applies to the constitutional contract, running from the ideal of a negotiated and express agreement between equals, through a form contract imposed from on high, down to consent implied by conduct, bottoming out at hypothetical consent. Greater justifications trump lesser ones. An express disavowal of allegiance, for instance, typically negates an argument for implied consent. Constitutional contractualism thus suggests that the U.S. Constitution binds government agents very tightly, while binding the government's subjects only loosely, at most.

Contractual constitutionalism suggests reforms that might make the U.S. federal government, as well as governments generally, more justified. It suggests, for instance, that suits against the government should not be tried by agents of the same. Rather, they should go to private, third-party, mutually-chosen arbitrators. Judicial independence and the jury system gesture in that direction, but leave ample room for improvement. Contractual constitutionalism also suggests interesting observations about the legal status of immigrants, the validity of "The Pledge of Allegiance," and the proper response to secession.

Because it advocates the initiation of coercive force, statism cries out for justification. Constitutional contractualism answers that call with a ruggedly practical methodology, one built on time-tested principles of common law. Yet constitutional contractualism also offers a transcendental appeal, one springing from the observation that a putative justification must seek with good intent to win the consent of its audience. Thus do principles of contract law measure the justification of the Constitution; thus does consent counterbalance coercion on the scales of justice.

I plan to work up these ideas in an academic paper, tentatively called "The Constitution as Contract." I'm come late to the Con Law party, admittedly. I stand at the entry, shuffling my feet awkwardly, staring at my shoes. Please introduce me to arguments you think I should know, whether friendly or challenging. I've of course read Randy Barnett's inspiring work and I've followed the long-running blogospheric debate over originalism at Larry Solum's, Legal Theory Blog,Brian Leiter's Law School Reports, Mike Rappaport at The Right Coast, Jack M. Balkin at Balkinzation, and elsewhere. It looks like a fun discussion, and one that I hope to enliven.

"Now, though, the Constitution means what it does or should mean to those of us it binds or benefits."

That seems like a pretty baseless leap in logic. Unless its meaning is subject to some ongoing ratification process, the intent that governs can only be the original intent. Anything else is just allowing the meaning of the contract to drift on random accidents of language evolution.

The constitution may be interpreted as "original meaning or "original intent" . The difference is the weight given to legislative history, the notes of James Madison, the other writings of varous founders and contemporaries.

It can also be "elastic" meaning what ever a particular judge wants. That is the well trodden path to tyranny. Wealthy people can bribe judges better than poor people.

A second point, which Posner's paper highlights, is the extent to which the common law of contract interpretation is influenced by the desire to minimise the cost of resolving disputes.

Cost is obviously much more important when you are dealing with potential disputes about the meaning of any of the millions of contracts that exist, compared to the U.S. Constitution which is just one document with a small army of legal scholars and others involved in the analysis.

I think you're right about this, and I think the debate on signing statements is a good place to insert this work. I think one might reasonably argue that a president who claims to have authority to determine which parts of an act are constitutional is akin to a dominant party proposing a contract of adhesion which assigns to himself the right to interpret key provisions of the contract. I think there are some courts that have worried about that, though the general trend toward respecting arbitration agreements may dominate here.

"The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago***. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years***. And the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but "the people" then existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves."-Lysander Spooner, NO TREASON - THE CONSTITUTION OF NO AUTHORITY

Jon: That's a debatable point, but I have to say that most theorists regard the "social contract" metaphor as no more than a metaphor.

SS: I do propose an on-going process of consent. You, in contrast, and like most commentators, make the mistake of assuming that the intent of the *writers of* or of the *original parties to* a contract controls. Not so. What matters is the consent of those who would be bound.

Thus, for instance, I might borrow word-for-word a leasehold agreement originally written and used in 1890, using it in a wholly different transaction today. What matters, for purposes of interpretation, is how I and the other party to that writing do or should now understand it--not what those long-dead parties from the Gilded Age thought.

Anon (and also SS): Under my view, the meaning of the Constitution could change. Most of its terms have probably not changed in meaning since its ratification, though. Perhaps "cruel and unusual" or "the press" represent exceptions. But, notably, even those changes at the margin of meaning do not render the Constitution meaning-less. And, regardless, I've heard no convincing reason why the meanings of 18th Century speakers should control us, today.

Ernest: Thanks for the cite, though I must admit I hardly see Hume's comments as probative. To say that monarchies have no claim to contractual justifications hardly says what a constitutional republic can--or more pointedly, should--aspire to.

Nigel: I am not convinced that we *should* view the Constitution as a multi-party contract, leastwise not in the sense that the People as a whole do or don't consent to it. Rather, I advocate viewing it as we would any other oft-used form contract: it binds two parties at a time (at best), over and over again.

Frank: Thanks for the encouraging words and interesting angle. I've been motivated primarily by the desire to analyze relations between the government and its citizens. But, as your observation indicates, the constitution-as-contract model might also teach us something about intra-government relations.

Charles: Thanks for the tip, but it probably won't surprise you to hear that I've long, long appreciated Spooner's take on the Constitution. I once found it utterly convincing. Now, though, I've adopted a more variegated view of constitutional justification. Granted, Spooner rightly critiques the Constitution for lacking the imprimatur of (his) express consent. But I regard that as merely the gold standard of justification. Contract law also offers implied and hypothetical consent as lesser measures of consent, measures I think we might fruitfully apply to the Constitution.

I have a feeling it might be difficult to keep your approach from morphing into social contract theory. You'll need to have some notion of the "default" position if the some term of the constitutional contract is void. What should that default position be? The state of nature?

Glen: I understand your point about the need for a default, but I don't quite get why that would make the theory morph into social contract theory. But to address the default point, I'd say that the Constitution binds most citizens only hypothetically or (perhaps) impliedly. In a way, *that* constitutes the default. We move away from it when a citizen voices dissent in a more manner more indicative of consent than hypothetical or implied consent--as when someone expressly renounces citizenship or (much more interestingly) refuses to pay taxes.

Shloky: You mean *Philip* Bobbitt, right? Well, you're right to cite him as an authority in the field of Con Law interpretation, but he does not (so far as I can tell) blog on the topic--unlike the other scholars I cited. But, anyhow, thanks for suggesting an important source.

The Constitution as a "contract" is correct as you are to "abide" to it in exchange for some rights. On the other hand, it becomes misleading as a "contract" for you do not take part in making them. But is this really an issue now? Once you extend your rights as a citizen, then you call for this "contract" to protect you as well.